# Gilder v. State

> Court of Criminal Appeals of Texas · January 11, 1972 · 474 S.W.2d 723

URL: https://www.frixlaw.com/law-library/cases/9666068

## Case

- **Full name:** Herman GILDER, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** January 11, 1972
- **Citations:** 474 S.W.2d 723; 1972 Tex. Crim. App. LEXIS 2259
- **Precedential status:** Published
- **Opinion:** Dissent by Roberts
- **Judges:** Odom, Onion, Douglas, Roberts
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9666068

## Opinion text

ROBERTS, Judge
(dissenting).
I concur in the dissenting opinion by Judge Douglas and would affirm in addition thereto for the following reasons.
The majority holds that some person must testify, that in his opinion, the driver of the vehicle in question was intoxicated, before the evidence is sufficient to support a jury verdict. They rely in this holding on Padillo v. State, Tex.Cr.App., 420 S.W.2d 712 . Padillo was a revocation of probation case in which it was alleged that appellant was “drunk in a public place.” In that case the only evidence was the testimony of two patrolmen that they smelled beer on Padillo’s breath, that he staggered and they had to help him to the patrol car and up some stairs. Each patrolman was testifying to a separate incident and neither was corroborated by any other person.
In Padillo, supra, Judge Woodley speaking for the Court, was relying on Snodgrass v. State, Tex.Cr.App., 18 S.W.2d 1084 and Clinton v. State, 64 Tex.Cr.R. 446 , 142 S.W. 591 . In both Snodgrass and Clinton, the appellants were charged under Article 477, V.A.P.C. with the offense of being drunk in a public place. In Snodgrass, no state’s witness testified that in his opinion the appellant was drunk, but the witness did say that he smelled of alcoholic beverage and staggered. Appellant’s witnesses testified that he was not drunk.
In Clinton, which was for being drunk in a public place, to-wit: a grand jury room, two witnesses testified that the appellant was intoxicated but then distinguished between being intoxicated and drunk. Other witnesses testified for the appellant that he was not drunk.
In Padillo, the appellant did not take the stand and testify and there was no testimony that he was not drunk. The only testimony being as heretofore set out.
Further, in Padillo the issue of drunkenness was not necessary to the decision since the allegation was that he was drunk in a public place “ ; . . the city of Littlefield” and this Court found that “ . . . a city is not a ‘public place’
In Clinton, the court charged the jury that a grand jury room was a public place and this Court held this to be error and stated that whether or not a grand jury room was a public place was a fact issue for the jury. Thus, the issue of drunkenness was not necessary for disposition of that case.
Insofar as Padillo relied upon Clinton and Snodgrass, I would distinguish the same due to the uncontroverted testimony of the appellant’s witnesses in each of said cases. I would overrule Padillo if it does hold as the majority seems to think, that opinion testimony is necessary before a *732 person can be found guilty of being intoxicated.
In the instant case, the appellant did testify, but at no time did he testify that he was not intoxicated or under the influence of intoxicating liquor.
Since appellant did testify, the fact that he did not deny the allegation is an additional circumstance to be considered by the jury in this cause.
Evidently, the majority feels that any crime can be proved by circumstantial evidence except the offense of driving a motor vehicle while intoxicated.
I am further at loss to understand the reversal by the majority because of their “well-established rule of close juxtaposition.” The evidence in this case is much stronger than that evidence that the majority found sufficient in Riggins v. State, Tex.Cr.App,, 468 S.W.2d 841 and Oltiveros v. State, Tex.Cr.App., 474 S.W.2d 221 (1971).
I would affirm the conviction.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9666068. Public record. Not legal advice.